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THE BRITISH EQUALITY FRAMEWORK IS
INCAPABLE OF ACHIEVING EQUALITY IN THE
WORKFORCE
LOIS THWAITES
Discrimination in the workforce continues to exist in Britain, where certain
groups — for example, women, disabled people, and ethnic minority groups —
are underrepresented or underpaid. This paper explores the effectiveness of the
British legal framework in achieving equality in the workforce under the
Equality Act 2010. While this Act has achieved significant improvements upon
the previous legal framework, it still assumes a complaints-led approach to
tackling employment discrimination. This is problematic, not only because it
results in few successful cases against employers, but also because it fails to
address deep-rooted systemic issues of inequality in the workforce. An
examination of approaches used in other jurisdictions reveals an advantage of
positive action over positive discrimination measures because they are not
detrimental to non-disadvantaged groups. It is recommended that Britain should
adopt a substantive equality approach similar to that of Northern Ireland and
incorporate mandatory positive action provisions into the Equality Act 2010.
1
INTRODUCTION
In Great Britain (Britain), certain groups of people are disadvantaged within the
workforce. Ethnic minorities and the disabled are under-represented for example, in
comparison to their share of the population. Women are also under-represented and
often paid less than men for equal work. These inequalities are the result of past
discrimination against these groups. Prior to the Second World War, the population of
Britain was predominantly white.1 In the 1950s, industries were expanding and there
was a shortage of workers so people who were regarded as ‘cheap labour’ were
recruited from the New Commonwealth (India, Bangladesh, Pakistan, etc). British
people treated the newcomers with hostility. They were excluded from society and
they only found work in poorly paid occupations, which white workers did not want. 2
Disabled people were traditionally thought to be a ‘burden’ and considered to be unfit
for work. They were classed as ‘idiots’ and ‘lunatics’ and they were segregated from
society in institutional asylums. 3 With regards to women in Britain, their role was
traditionally considered to be motherhood and looking after the home. 4 They were
perceived to be the weaker sex; they were not educated to the same standard as men

Lois Thwaites, Newcastle University, Law, LLB (Hons) Law.
Deborah Phillips, ‘Black Minority Ethnic Concentration, Segregation and Dispersal in Britain’ (1998)
35(10) Urban Studies 1681.
2
ibid.
3
English Heritage, ‘A History of Disability: From 1050 to the Present Day’ <http://www.englishheritage.org.uk/discover/people-and-places/disability-history/> accessed 16 April 2013.
4
Gerry Holloway, Women and Work in Britain since 1840 (Routledge, Abingdon 2005).
1
138
THE BRITISH EQUALITY FRAMEWORK
and they generally held a lower status in society than men.5 It took a long time for
women to be given equal rights to men.6 Women have been described under a Marxist
theory as a pool of cheap and unskilled workers that can be tapped into when required
and disposed of when there is no longer a use for them.7 These stereotypes and
negative attitudes towards these groups of people continue today. They are systemic
issues of inequality, deep-rooted within British society, and within the British
workforce.
This paper does not propose to address the philosophy of equality, nor does it ask
whether equality should be a keystone in our society and workforce. The goal of
achieving equality is clearly stated in the Equality Act 2010 and its predecessors.
Rather, the question which this paper asks is whether, given the importance of this
goal in the modern British polity, the system created by the 2010 Act is capable of
achieving it. The argument it makes is that it is not.
Section two firstly outlines the discrimination problems in Britain and highlights that
there has been no (or little) improvement in the last few decades, under the
‘complaints-led’ formal equality approach. A brief history of British equality
legislation is then offered and it is acknowledged that the Equality Act 2010 is, in
general, an improvement on the old legal framework. Yet, as the section discusses,
there are serious problems with the complaints-led model (still used in Britain), and
specific problems regarding the British Employment Tribunal Service and the role of
the Equality and Human Rights Commission (EHRC). There is, it is argued, a strong
case for adopting proactive measures under the substantive equality approach.
The third section follows by analysing the different forms of proactive measures that
have been adopted in other jurisdictions, assessing three ‘positive discrimination’
approaches — ‘affirmative action’ in the United States (US) and quotas in India and
the European Union (EU) — and comparing these with three instances of statutory
‘positive action’ duties in Canada, South Africa and Northern Ireland. As the section
demonstrates, positive action has clear advantages over positive discrimination, as it
is not detrimental to non-disadvantaged groups. It is also demonstrated that when
positive action is implemented and enforced in a manner that gives regulators the
power to punish, as well as persuade, it produces far superior results than formal
equality, as the example of Northern Ireland shows.
The fourth section starts by providing a brief history of the position of positive action
schemes under British legislation. It is then explained how recommendations to
5
ibid.
Patricia M. Thane, ‘What difference did the vote make? Women in public and private life in Britain
since 1918’ (2003) 76(192) Historical Research 268.
7
Irene Bruegel, ‘Women as a Reserve Army of Labour: A Note on Recent British Experience’ (1979)
3 Feminist Review 12.
6
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impose mandatory positive action duties on employers were rejected by Parliament
for being burdensome on businesses. It is argued however, that the benefits of
mandatory employer duties far outweigh any burden. The section then discusses the
positive action provisions provided by the new Equality Act and argues, by drawing
on the experience of other jurisdictions, that they are insufficient to redress the past
discrimination experienced by disadvantaged groups, as they fail to impose
obligations on employers. The limitations of the ‘public sector equality duty’ are also
discussed. The section concludes with a discussion which highlights the likely
objections to positive action from employers, and responses are provided to overcome
these.
Finally, the fifth section draws the threads of the argument together. The complaintsled model under the formal equality approach, it argues, is incapable of addressing
systemic issues of inequality within the British workforce and thus cannot redress past
discrimination of disadvantaged groups. To the extent the current positive action
provisions in the Equality Act 2010 are based on this approach, they will not succeed
in achieving equality. Northern Ireland, notwithstanding its very different conditions,
offers a better model with its substantive approach to equality, which Britain should
seriously consider adopting.
2
THE FAILINGS OF THE BRITISH APPROACH
2.1
Formal and Substantive Equality
The statistics set out in the Cambridge Review8 and the more recent report of the
National Equality Panel9 demonstrate the extent of the discrimination problem in
Britain. Over the past few decades there has been no increase in the representation of
ethnic minorities and disabled people in the British workforce.10 For example, the
unemployment rate for ethnic minority men continues to be twice that of white men,
and the disabled continue to be three times less likely to find work than their ablebodied counterparts.11 The gender pay gap was reduced from 30 per cent in 1975 to
17.2 per cent in 2007.12 However, in thirty two years there should have been a greater
reduction than 12.8 per cent.13
8
Bob Hepple, Mary Coussey, Tufyal Choudhury, Equality: A New Framework: Report of the
Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Hart Publishing,
Oxford, 2000) 12-13.
9
National Equality Panel, An Anatomy of Economic Inequality in the UK – Report of the National
Equality Panel (Government Equalities Office 2010).
10
ibid; Hepple, Coussey, and Choudhury (n 8).
11
ibid.
12
Hepple, Coussey, and Choudhury (n 8); Sandra Fredman, ‘Reforming Equal Pay Laws’ (2008) 37(3)
Industrial Law Journal 193, 194; H. Daniels, Patterns of Pay: Results of the Annual Survey of Hours
and Earnings 1997-2007 (Employment, Earnings and Innovation Division, Office for National
Statistics).
13
Fredman (n 12) 194; Daniels (n 12).
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THE BRITISH EQUALITY FRAMEWORK
The ultimate goal is to achieve equality within the British workforce. There are a
number of alternative approaches towards achieving this. The concept of ‘formal
equality’ can be described as one of consistency; based on the equal treatment
principle. It aims to eliminate unfair treatment by treating all individuals in the same
way.14 This is the predominant approach adopted in British anti-discrimination law.15
Conceptual arguments in favour of formal equality include primacy of individuals,
impartiality and state neutrality. 16 The formal approach has been criticised, however,
as it fails to take account of the realities experienced by disadvantaged groups. 17
Treating everybody the same can result in underlying forms of discrimination being
ignored.18 The different needs of different social groups cannot be accommodated if
all people/groups are treated the same.19 The use, in Britain, of this restrictive formal
approach to equality perhaps explains why there has been no significant improvement
in relation to the discrimination of disadvantaged groups. Ethnic minorities, the
disabled, and women for example, all have very different needs regarding
employment, and the issues they face also vary.
Fredman and many other academics promote the adoption of a ‘substantive equality’
approach.20 Substantive equality targets disadvantaged groups to achieve equality. 21
The substantive view takes account of past discrimination, and looks to the law to
correct the results of this.22 It goes against the equal treatment principle, but
supporters of substantive equality argue that preferential treatment of certain social
groups can be justified, as it is necessary to remedy past discrimination that affected
those groups, in order to achieve equality. 23 They support the use of ‘proactive
measures’.24 These will be discussed below. Substantive equality has two main
branches; ‘equality of opportunity’ and ‘equality of results’. ‘Equality of opportunity’
aims to provide a ‘fair and equal starting point for all’.25 It requires the removal of
barriers to encourage participation from disadvantaged groups. It has been suggested,
however, that this alone will not necessarily equip individuals to take advantage of
14
Catherine Barnard and Bob Hepple, ‘Substantive Equality’ (2000) 59(3) Cambridge Law Journal
562; Noreen Burrows and Muriel Robison, ‘Positive Action for Women in Employment: Time to Align
with Europe?’ (2006) 33(1) Journal of Law and Society 24; Colm O’Cinneide, ‘Positive Action and the
Limits of Existing Law’ (2006) 13 Maastricht Journal of European and Comparative Law 351.
15
Sandra Fredman, Discrimination Law (2nd edn, Oxford University Press, Oxford 2011).
16
Nurul Izza Idris, ‘Rethinking the Value of Preferential Treatment’ (2009) 15 UCL Jurisprudence
Review 45.
17
Noreen Burrows, ‘Positive Action’ (2010) 96 Employment Law Bulletin 4.
18
O’Cinneide (n 14) 351.
19
Idris (n 16) 58.
20
O’Cinneide, ‘Fumbling Towards Coherence: The Slow Evolution of Equality and AntiDiscrimination Law in Britain’ (2006) 57 Northern Ireland Legal Quarterly 57.
21
Burrows and Robison (n 14) 27.
22
Fredman (n 15) 236.
23
O’Cinneide (n 14) 354.
24
ibid.
25
O'Cinneide (n 20) 59.
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141
opportunities.26 For example, educational qualifications (which can be a barrier) may
be relaxed, but disadvantaged groups may still lack the practical experience necessary
to do the job, and may therefore be unsuitable for the particular role.27 Other social
factors, such as child-care obligations or lack of transport, can also get in the way. 28
The concept of equality of opportunity can therefore only achieve limited success 29
unless suitable resources are provided to members of disadvantaged groups to put
them in a position where they are capable of taking advantage of opportunities. 30
‘Equality of results’ seeks to remedy the disadvantages faced by disadvantaged
groups.31 The past discrimination experienced by disadvantaged groups in Britain can
only be corrected by the equality of results approach, which will include proactive
measures being taken by employers. For the purpose of this discussion, the term
‘substantive equality’ will refer to the ‘equality of results’ branch of substantive
equality.
As mentioned above, British legislation has traditionally adopted a predominantly
formal approach to equality, which has been unsuccessful in remedying the problems
of discrimination faced by disadvantaged groups. 32 Whilst British legislation has
developed considerably over the past two decades, in terms of its structure and its
scope, this has remained unchanged.33 The focus of the reforms has been on
simplification and harmonisation, rather than altering the approach. Equality
legislation in Britain began almost fifty years ago, with the Race Relations Act 1965,
and over the following three decades, many other anti-discrimination laws were
enacted, including the Equal Pay Act 1970, the Sex Discrimination Act 1975, and the
Disability Discrimination Act 1995.34 In the year 2000, the Cambridge Review
criticised the framework of legislation for being outdated and fragmented. 35 The law
only covered race, sex and disability, and there were many inconsistencies between
the protections afforded to each in terms of discrimination.36 Other characteristics
such as age, religion and sexual orientation were not protected under these laws.
Employers, and even lawyers, found the framework difficult to use, as they were
required to have knowledge of several domestic statutes (as mentioned above),
European Community directives and principles, the Human Rights Act 1998 and the
European Convention on Human Rights and Fundamental Freedoms. The review
26
Sandra Fredman, Sarah Spencer, ‘Beyond Discrimination: It’s Time for Enforceable Duties on
Public Bodies to Promote Equality Outcomes’ (2006) 6 European Human Rights Law Review 598.
27
ibid.
28
ibid.
29
Burrows and Robison (n 14) 27.
30
Fredman and Spencer (n 26).
31
Burrows and Robison (n 14) 27.
32
Fredman (n 15).
33
Bob Hepple, ‘The New Single Equality Act in Britain’ (2010) 5 The Equal Rights Review 11.
34
Bob Hepple, Equality: The New Legal Framework (Hart Publishing Ltd, Oxford 2011).
35
Hepple, Coussey, Choudhury (n 8).
36
ibid.
142
THE BRITISH EQUALITY FRAMEWORK
found the legislation to be unworkable due to the complexity of having too many
laws.37
The Cambridge Review recommended that there should be a single Equality Act with
clear fundamental principles which would adopt a unitary approach, and would cover
all protected characteristics (e.g. race, sex, etc.).38 The protected characteristics would
also be extended to cover discrimination on a wider set of grounds. 39 Following the
review, Lord Lester, introduced a Private Member’s Bill in 2003, which encapsulated
the recommendations of the review.40 The Government acknowledged that the
existing equality framework was not working as had been hoped, so it commissioned
its own independent reviews.41 In 2007, it published the Equalities Review which
examined discrimination in Britain, and also a proposal for a single Equality Act (the
Discrimination Law Review). In 2009, the Government’s Equality Bill was presented
to Parliament, and the Bill finally received royal assent in April 2010. 42 The Equality
Act 2010 has updated, harmonised and simplified the previous anti-discrimination
legislation. It intends to provide a workable framework, which both protects people
from unfair treatment, and promotes a more equal society. 43 The new Act is a
significant step forward for equality in Britain, as there are now nine protected
characteristics (race, sex, disability, age, religion or belief, pregnancy and maternity,
marriage and civil partnership, sexual orientation and gender reassignment) rather
than just three previously. However, the underlying principle of formality has not
changed. Nor has the process by which discrimination is dealt with.
2.2
The Complaints-Led Process
Under the old law, issues of discrimination would be challenged by way of
employees/potential employees making complaints against their employers/potential
employers under a ‘reactive’, ‘complaints-led’ anti-discrimination model.44 This
remains the same under the Equality Act 2010, whereby employees/potential
employees are able to bring claims before an employment tribunal to challenge an
employer’s alleged wrongdoing.45 The process for dealing with discrimination in
Britain has always been a reactive, complaints-led process, under the formal equality
approach. It has been criticised for a number of reasons.46
37
ibid.
Hepple (n 33) 14.
39
Hepple, Coussey, Choudhury (n 8).
40
Hepple (n 33) 14.
41
Lizzie Barmes, ‘Equality Law and Experimentation: The Positive Action Challenge’ (2009) 68(3)
Cambridge Law Journal 623.
42
Hepple (n 33) 14.
43
Ed, ‘Equality Act 2010’ (2010) 16(9) Health & Safety at Work 8, 8.
44
Hepple, Coussey and Choudhury (n 8).
45
Equality and Human Rights Commission, ‘Your Choices’
<http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-workers/what-to-do-if-youbelieve-youve-been-discriminated-against/your-choices/> accessed 23 January 2013.
46
Fredman (n 15).
38
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The first problem with the complaints-led model is its individualistic core. There must
be an individual victim of discrimination, and the onus is on that person to challenge
the discrimination so that a step towards equality can be made.47 The EHRC advises
individuals to think very carefully about taking their complaint to an employment
tribunal, as this can be very demanding on their time and emotions. 48 Many people
might be put off from claiming due to the stress involved with the process. Individuals
may just have to accept that they have been discriminated against and try to move on,
whilst their employer gets away with it, and possibly continues to discriminate.
Another problem with the complaints-led model is that it must be possible to identify
a specific perpetrator. It is recognised that discrimination is often not the fault of a
specific individual, but rooted in the deep institutional structure of an organisation. 49
Even if an individual is successful at an employment tribunal, this will only give rise
to a remedy for that individual, rather than addressing the systemic issues within the
organisation.50 This was the case prior to the new Equality Act 2010, and the new Act
has done nothing to change this. It is noted that under Section 124 Equality Act 2010,
tribunals are permitted to make recommendations to employers to remedy their
wrongs. However, as employers who fail to comply with recommendations are, at
worst, penalised by a mere increase in compensation, this can hardly be seen as an
effective instrument with which to overcome systemic equality issues within the
structure of organisations.51 The complaints-led model only addresses the inequalities
arising from employers’ individual acts of discrimination (if victims actually
complain). It is inadequate for addressing systemic equality issues within
organisations.52
A third problem with the complaints-led model is that it assumes that employers will
be so fearful of employees bringing claims in employment tribunals (especially if they
have had action brought against them in the past), that they will be motivated to
voluntarily review and improve/update their equality policies and practices. 53 In
reality however, the fact that discrimination claims are adversarial in nature makes
employers view equality as a cause of conflict. Instead of being motivated to improve
their practices to achieve equality, claims or fear of claims from employees can
actually make employers defensive and resistant to change. 54 In addition, the British
47
Aileen McHarg, Donald Nicolson, ‘Justifying Affirmative Action: Perception and Reality’ (2006)
33(1) Journal of Law and Society 1.
48
Equality and Human Rights Commission (n 45).
49
McHarg and Nicolson (n 47).
50
ibid.
51
Fredman (n 15) 290.
52
Sandra Fredman, Sarah Spencer, ‘Equality: Towards an Outcome-Focused Duty’ (2006) 156 Equal
Opportunities Review.
53
Fredman and Spencer (n 26) 599.
54
Bob Hepple, ‘Enforcing Equality Law: Two Steps Forward and Two Steps Backwards for Reflexive
Regulation’ (2011) 40(4) Industrial Law Journal 315, 316; Sandra Fredman, ‘Changing the Norm:
144
THE BRITISH EQUALITY FRAMEWORK
system suffers from specific procedural weaknesses arising out of the tribunal system
and the role of the EHRC.
2.3
The Tribunal System
Although the discrimination problem in Britain appears to be substantial; given that
certain groups are under-represented in the workforce, and the gender pay gap is still
very much an issue, Employment Tribunal statistics show that the number of claims
brought against organisations in tribunals is small.55 In addition to potential claimants’
concerns about the process being demanding on their time and emotions, a number of
other reasons might explain the low numbers of claims. Making a claim to a tribunal
can be a very lengthy process. For example, a report in 2003 highlighted that an equal
pay claim could take between eight and ten years from start to finish. 56 Another factor
which might deter people from claiming is the possible expense to be incurred.
Claimants must bear their own expenses, and as compensation awards are generally
low, even a successful claim could result in financial loss.57 Taking these factors into
consideration, it is understandable why there are low numbers of discrimination
claims made to tribunals.
Statistics show that not only is there a small number of claims made to tribunals, but
the number of successful claims is also very low. 58 In 2009-10 only 2 per cent of sex
discrimination claims were successful at tribunal. Other grounds of discrimination
produced similar figures. Only three per cent of race discrimination cases, three per
cent of disability discrimination cases, two per cent of age discrimination cases, two
per cent of religion or belief cases, and five per cent of sexual orientation cases were
successful in tribunals in 2009-10.59 This fact is made worse by evidence which
highlighted that a considerable number of repeat alleged discriminators could be
identified from a search of Employment Appeal Tribunal judgments.60 Amongst the
offenders were large organisations which have thousands of employees. These
included local authorities.61 Perhaps these employers see how low discrimination
claim success rates continue to be, so they keep discriminating against employees, or
potential employees, because they are unlikely to be found guilty at a tribunal.
Positive Duties in Equal Treatment Legislation’ (2005) 12 Maastricht Journal of European and
Comparative Law 369, 373.
55
Ministry of Justice Tribunals Service, 'Employment Tribunal and EAT Statistics 2009-10'
<http://www.tribunals.gov.uk/Tribunals/Publications/publications.htm> accessed 23 December 2013;
Fredman (n 15) 281.
56
K. Godwin, ‘Equal Value Update’ (2003) 117 Equal Opportunities Review 5, 8; Sandra Fredman,
‘The Public Sector Equality Duty’ (2011) 40(4) Industrial Law Journal 405, 416.
57
Fredman (n 15) 283.
58
Fredman (n 15) 281.
59
Ministry of Justice Tribunals Service (n 55).
60
Anon, ‘Equality Bodies Failing to Enforce Discrimination Law’ (2006) 157 Equal Opportunities
Review.
61
ibid.
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An attempt can be made to explain the low success rates for claimants in employment
tribunals. One difficulty which claimants face relates to obtaining evidence. Relevant
evidence is often in the hands of the employer and inaccessible to the claimant. 62
Research has shown that claimants with legal representation are more likely to be
successful in a discrimination case, not only because a legal representative would be
better at understanding the procedure, and also the relevant legislation, but that they
would also be more skilled in obtaining evidence from the defendant. 63 The problem
for claimants is that they often cannot afford to pay for legal representation. There is
no legal aid available to claimants for representation at employment tribunals, and
claimants are unlikely to be offered a ‘damages-based’ or ‘conditional fee’ agreement
by a lawyer unless there is a strong chance of a large compensation award.64 The
EHRC was given the power to provide claimants with financial assistance for legal
representation under Section 28 Equality Act 2006. However, due to budgetary
constraints on the EHRC, it is likely that only a small number of claimants receive
funding.65
2.4
The Role of the EHRC
In addition to the issues raised about the employment tribunal system, the role of the
EHRC also raises concerns. The EHRC was established under the Equality Act 2006.
Three previous equality commissions: the Commission for Racial Equality, the
Disability Rights Commission, and the Equal Opportunities Commission merged to
form one single Commission.66 It covers all nine of the characteristics protected under
the Equality Act 2010. The single commission has a wider remit than its predecessors.
Its role is to protect, enforce and promote equality and human rights. 67
With regards to enforcing equality law (which there appears to be a distinct lack of in
the British system), the Equality Act 2006 gave the EHRC powers to conduct both
inquiries and formal investigations. EHRC inquiries are more like fact-finding
exercises than mechanisms for enforcing equality law. 68 The Commission might, for
example, conduct an inquiry into a particular sector. It may well uncover issues of
discrimination, and is entitled to publicise a report detailing inequalities found,, and is
permitted to make recommendations for improvement.69 However, because the
recommendations are not legally binding, and specific organisations or individuals
cannot be named in the report, the value of the EHRC inquiry, in terms of enforcing
equality law, is questionable.70
62
Fredman (n 15) 283.
ibid.
64
Hepple (n 45) 328.
65
Fredman (n 15) 287.
66
Equality and Human Rights Commission, ‘Vision and Mission’
<http://www.equalityhumanrights.com/about-us/vision-and-mission/> accessed 24 January 2013.
67
Equality and Human Rights Commission ‘About Us’ <http://www.equalityhumanrights.com/aboutus/index.html> accessed 24 January 2013.
68
Fredman (n 15) 297.
69
ibid.
70
ibid.
63
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THE BRITISH EQUALITY FRAMEWORK
The second enforcement power of the EHRC, to conduct a formal investigation,
appears to be a more useful enforcement mechanism. The Commission can launch a
formal investigation if it suspects that a person has committed an unlawful act. An
investigation can lead to an ‘unlawful act notice’ which may require the person to take
action to remedy any wrongdoing. 71 However, this investigative power is hindered by
several procedural protections for the person suspected of discrimination. The
respondent is given three opportunities to make representations. The first relates to the
terms of reference of the investigation, the second relates to the subject of the
investigation, and the third gives the person 28 days to make representations on the
report before it is finalised.72 It is agreed that respondents should be provided with
some protection in the process. However, they are given too many opportunities to
‘wriggle out’ of a notice being served by the Commission. The investigation process
is also reliant on complainants coming forward, which, as has already been discussed,
does not occur in great volumes. The Commission will not suspect wrongdoing if
nobody speaks out about an employer’s discriminatory practices.
Further concerns over the EHRC’s role result from the Coalition Government’s plans
to restrict the powers of the EHRC, and to make further cuts to its annual budget. 73 In
2011-12, the Commission’s budget was £48.9 million, compared to £70 million in
2007.74 The Government plans to reduce this to £26 million by 2015. 75 If the
Commission’s powers (which are already of questionable value) are going to be
restricted, and the resources with which they conduct inquiries and investigations
significantly reduced, the Commission will be even less of a force in the fight against
discrimination than it is now.
2.5
The Case for Proactive Measures
It has been demonstrated that there are many issues with the complaints-led model of
anti-discrimination under the formal approach, and that specifically the British system
is very problematic. Despite the advances in equality law brought by the Equality Act
2010, the process for combating discrimination is still focussed on individual
complaints, and thus fails to address systemic issues of inequality within
organisations. Some groups of people continue to be under-represented, and unequal
pay is still very much an issue.76 If the system is not changed, how can we expect the
results to change? Many commentators recommend that Britain should adopt a
substantive approach to equality to combat its discrimination problem. This would
mean changing to a model which is ‘proactive’ rather than ‘reactive’ or ‘complaintsled’. Such a model would include proactive measures being taken by employers.
71
Hepple (n 34) 151-152.
ibid.
73
Hepple (n 45) 319.
74
ibid.
75
ibid.
76
Kate Godwin, ‘Positive Action: Possibilities and Limits’ (2007) 170 Equal Opportunities Review 22.
72
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It should firstly be noted that proactive measures come in two main forms: ‘positive
action’ and ‘positive discrimination’. There is much confusion within the literature
over the distinction between the two. Malamatenious says that positive action
measures are designed to encourage members of disadvantaged groups to participate
in employment, for example by offering training opportunities, whilst positive
discrimination would, for example, be a mandatory requirement for employers to
recruit a certain proportion of candidates from disadvantaged groups which are underrepresented within their workforce.77 Noon agrees with Malamatenious’ definition of
positive action. However, he defines positive discrimination as being the recognition
and consideration of protected characteristics, by an employer, within their
appointment and selection decision-making process.78 For the purpose of this
discussion, the EHRC’s definition of positive action will be taken is as follows: ‘[T]he
steps that an employer can take to encourage people from groups with different needs,
or with a past track record of disadvantage or low participation, to apply for jobs’. 79
This can be extended to include the steps that an employer can take in the
recruitment/selection decision-making process to increase the representation of
disadvantaged groups in their workforce.80 Positive discrimination will refer to
mandatory requirements for employers to recruit certain proportions of candidates
from disadvantaged groups.
Employers can use proactive measures to break down systemic forms of inequality
within their organisations (such as under-representation of disadvantaged groups) and
redress past discrimination.81 Proactive measures can take a variety of forms,
including preferential treatment, statutory duties, quotas, and contract compliance. 82
These will be discussed throughout the following two sections.
Proactive measures are controversial because they conflict with the equal treatment
principle; they allow for the use of unequal treatment in order to achieve equality. 83 It
is argued that although proactive measures may, for example, increase the
representation of disadvantaged groups in the workforce, this may be at the expense
of ‘innocent third parties’, particularly from the white male population, and especially
where the principle of merit (which requires people to be rewarded on the basis of
their skills and abilities) is disregarded. 84 Members of disadvantaged groups have
77
David Malamatenious, ‘Redressing the Balance’ (2003) 153 New Law Journal 1208.
Mike Noon, ‘The Shackled Runner: Time to Rethink Positive Discrimination?’ (2010) 24(4) Work,
Employment and Society 728.
79
Equality and Human Rights Commission ‘Positive action and recruitment – What is ‘positive
action’?’ <http://www.equalityhumanrights.com/advice-and-guidance/guidance-forworkers/recruitment/positive-action-and-recruitment/> accessed 11 April 2013.
80
O’Cinneide (n 14).
81
O'Cinneide (n 20); Godwin (n 76).
82
Christopher McCrudden, ‘Rethinking Positive Action’ (1986) 15 Industrial Law Journal 219;
O’Cinneide (n 14) 354.
83
Fredman (n 54) 369.
84
Christopher McCrudden (n 82) 219; Jonathan S Leonard, ‘What was Affirmative Action?’ (1986)
76(2) The American Economic Review 359.
78
148
THE BRITISH EQUALITY FRAMEWORK
been ‘innocent’ victims of discrimination for many years, however, and this
discrimination needs to be redressed. Proactive measures can break down systemic
forms of discrimination, which are the causes of the inequalities suffered by
disadvantaged groups within the British workforce, and deliver justice to such groups
by compensating them for the past discrimination that they have suffered at the hands
of society.85
As has been discussed, the current complaints-led model, under the formal equality
approach, is incapable of delivering this justice and redressing past discrimination. It
only addresses individual acts of discrimination. The proactive model, under the
substantive equality approach deals with many of the problems identified within the
complaints-led model.86 Instead of the responsibility being on the individual to make
a complaint about discrimination and the employer ‘reacting’ to it, the initiative lies
with the employer to take positive measures to combat discrimination within their
workplace.87 There is also no need to identify an individual perpetrator in the
proactive model. Rather than proving fault, and punishing a specific individual, the
focus is on the organisation as a whole. The employer takes action to identify
systemic equality issues within the organisation’s structure, and then creates policies
and procedures to remedy these inequalities, and eliminate discrimination. 88 Rather
than being defensive towards complaints from individuals, the employer is in control
and has the opportunity to make real changes within the organisation.89 The proactive
model is capable of dealing with systemic issues as it considers the equality rights of
all employees, not just the individuals who make a complaint. 90 If employers take
proactive measures towards eliminating discrimination within their workforces, they
should receive far fewer complaints from employees and reduce the risk of claims for
compensation.91 The proactive model, under the substantive equality approach, has
been adopted in a number of jurisdictions outside of Britain. This will be discussed in
the next section.
3
PROACTIVE MEASURES IN OTHER JURISDICTIONS
3.1
A Contractual Approach – the US Model
The US adopted the proactive model, and used a contract compliance system to
remedy the under-representation of disadvantaged groups. 92 The US has a history of
85
McHarg and Nicolson (n 47).
Fredman (n 54).
87
ibid.
88
ibid.
89
ibid.
90
ibid.
91
Fredman (n 12) 193.
92
Raya Muttarak, Heather Hamill, Anthony Heath, Christopher McCrudden, ‘Does Affirmative Action
Work? Evidence from the Operation of Fair Employment Legislation in Northern Ireland’ (2012)
Sociology <http://soc.sagepub.com/content/early/2012/10/01/0038038512453799> accessed 20
February 2013.
86
NORTH EAST LAW REVIEW
149
discrimination against black people (in the US ‘black people’ refers to Native
Americans, Africans and other ethnic minorities).93 The US was discovered by white
European settlers who oppressed the Native Americans, gained control of the land and
brought black slave labour from Africa. Even after slavery was abolished, black
people continued to be poorly treated and discriminated against (they were
disadvantaged).94 Blacks were under-represented in the US workforce so an Executive
Order was issued by President Kennedy in 1961. This required organisations seeking
or wanting to maintain government contracts to take positive action measures (there
termed ‘affirmative action’) to increase the representation of blacks within their
workforces. This involved developing affirmative action plans, including goals and
timetables.95 The process allowed employers to prefer less well qualified candidates to
better qualified candidates on the grounds of race (there was no regard for the
principle of merit).96 By way of enforcement, the Office of Federal Contract
Compliance Programs (OFCCP) had extensive investigatory powers, including the
ability to conduct compliance reviews.97 If the OFCCP found an employer’s
affirmative action plan to be unacceptable, it could issue a notice to the employer, and
where the employer did not comply, the organisation could be barred from holding
government contracts.98
The affirmative action measures under the 1961 Executive Order are thought to have
been successful in increasing representation of black people in the US workforce. 99 A
comparison of data from 1974 and 1980 from government contracting firms and nongovernment contracting firms showed that the employment growth rate for black
males was 3.8 per cent faster in contracting firms, and 12.3 per cent faster for black
females.100 At the same time however, the employment growth rate for white males
was reported to be 1.2 per cent slower in the contracting firms. 101 The affirmative
action measures were accused of being positive discrimination against white males;
the numerical targets included in the goals and timetables of affirmative action plans
were perceived to be quotas (measures which require employers to recruit a certain
proportion of candidates from disadvantaged groups) which were detrimental to white
male employment.102 The affirmative action measures required in government
contracts in the US were abolished by the Reagan government in 1981, and the black
93
Ashwini Deshpande, ‘Affirmative Action in India and the United States’ (World Bank, 2005)
<https://openknowledge.worldbank.org/handle/10986/9038> accessed 20 February 2013.
94
ibid.
95
Jonathan S Leonard, ‘The Impact of Affirmative Action Regulation and Equal Employment Law on
Black Employment’ (1990) 4(4) Journal of Economic Perspectives 47.
96
Sionaidh Douglas-Scott, ‘Affirmative Action in the US Supreme Court: The Adarand Case – The
Final Chapter?’ (1997) Spr Public Law 43.
97
Fredman (n 15).
98
Leonard (n 95).
99
ibid; Muttarak et al. (n 92); Deshpande (n 93).
100
Leonard (n 84) 359.
101
ibid.
102
Leonard (n 95).
150
THE BRITISH EQUALITY FRAMEWORK
economic advance, which had been experienced as a result of affirmative action,
faltered.103
The experience in the US shows that ‘mandatory’ proactive measures imposed on
employers can achieve the desired results of increased representation of
disadvantaged groups in the workforce. However, when numerical targets are
involved in the process and the principle of merit is disregarded, there can be a
detrimental effect on non-disadvantaged groups. Perhaps if the principle of merit had
been included in the affirmative action programme, and employers could only choose
to recruit a black person over an equally qualified white person, there may not have
been a detrimental effect to white male employment. The employment growth rate for
blacks would perhaps have been slower; however this would have been much less
controversial than the system that was used.
3.2
The Quota System – India and the EU
The US abolished the affirmative action measures in government contracts for
positive discrimination. However, other jurisdictions have willingly adopted the
positive discrimination approach. India has a widespread quota system which is the
largest in the world.104 Quotas are a special kind of positive discrimination, the
legality of which varies widely between nations. In India, a caste system, which has
now been abolished, separated the Indian people into five castes. The people in the
bottom caste were considered to be ‘untouchables’ and they suffered disadvantages in
the form of exclusion, oppression and discrimination in employment. 105 A quota
system, enshrined in the Indian Constitution in 1950, targets this group of people to
bring them into the mainstream, and compensate them for past discrimination. In
addition to the former ‘untouchables’, the quota system also targets people from tribal
communities who were outside of the caste system (but still excluded from the
mainstream), as well as any other people who have been similarly disadvantaged. 106
Although the Prime Minister has urged the private sector to enhance and promote the
employment of disadvantaged groups, the quota system, at present, only covers the
public sector.107 Article 16(4) of the Indian Constitution reserves a percentage of jobs
in the public sector for the disadvantaged groups. The quotas are proportional to the
disadvantaged groups’ share of the population, with a total of 49 per cent of jobs
being reserved.108 The quota system in India is described as being a partial success.
Each of the disadvantaged groups has experienced a rise in monthly per capita
expenditure over the last few decades. The disadvantaged groups appear to be filling
103
ibid.
V. K. Verma, ‘Affirmative Action (Positive Discrimination)’ (2008) LBS Journal of Management &
Research.
105
Deshpande (n 93).
106
ibid.
107
Verma (n 104).
108
Deshpande (n 93).
104
NORTH EAST LAW REVIEW
151
the lower level reserved jobs. However, the jobs reserved in the upper levels of
employment largely remain unfilled.109 People from disadvantaged groups often do
not have the capabilities to perform upper level jobs, and quotas do nothing to change
this. ‘Positive action’ measures, on the other hand, can provide disadvantaged people
with the capabilities they need, by offering them training opportunities for example.
The quota system in India does not provide for training. There is no monitoring, no
accountability to fill the reserved jobs, and no penalties. There is a Commission of
some description; however, it has not been proactive in enforcing the quotas. The only
way to enforce the quota system is through a writ under Articles 32 and 226 of the
Indian Constitution. This is problematic, as a writ application is generally too
expensive for a potential claimant, and also the judiciary is dominated by the previous
upper castes.110
In the EU, there has been some debate over whether the use of quotas in employment
is legal.111 Three German cases illustrate the developments in the European Court of
Justice (ECJ). In Kalanke v Freie Hansestadt Bremen,112 the ECJ adopted a strictly
formal approach, and held that a quota system, which allowed automatic preference in
employment of women over men, was incompatible with Article 2(4) of the Equal
Treatment Directive.113 Two years later, in Marschall v Land Nordrhein-Westfalen,114
the ECJ held that a similar quota system was consistent with EU law, provided that
the measure included a ‘saving clause’ to balance any disproportionate disadvantages
to male candidates.115 Badeck v Hessischer Ministerprasident,116confirmed the
principle in Marschall, as the ECJ upheld a system of ‘flexible result quotas’.117 EU
law generally prohibits positive discrimination, but quotas are a special kind of
positive discrimination permitted by EU law.118
In addition to Germany, a number of other EU member states including the
Netherlands, Norway, and Sweden use quotas to increase representation of
disadvantaged groups in their workforces, and some of these have been very
109
ibid.
ibid.
111
Dagmar Schiek, ‘Positive Action before the European Court of Justice – New Conceptions of
Equality in Community Law? From Kalanke and Marschall to Badeck’ (2000) 16(3) The International
Journal of Comparative Labour Law and Industrial Relations 251.
112
Case C-450/93, Eckhard Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051.
113
Council Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for Men
and Women as Regards Access to Employment, Vocational Training and Promotion, and Working
Conditions[1976] OJ L 39/40; Catherine Barnard and Tamara Hervey, ‘Softening the Approach to
Quotas: Positive Action after Marschall’ (1998) 20(3) Journal of Social Welfare and Family Law 333.
114
Case C-409/95, Hellmut Marschall v Land Nordrhein-Westfalen [1997] ECR I-6363.
115
Anke J. Stock, ‘Affirmative Action: A German Perspective on the Promotion of Women’s Rights
with Regard to Employment’ (2006) 33(1) Journal of Law and Society 59.
116
Case C-158/97, Badeck v Hessischer Ministerprasident [2000] ECR I-1875.
117
Daniela Caruso, ‘Limits of the Classic Method: Positive Action in the European Union after the
New Equality Directives’ (2003) 44(2) Harvard International Law Journal 331.
118
Employment Equality Directive 2000/78; Lisa Waddington and Mark Bell, ‘Exploring the
Boundaries of Positive Action under EU Law: A Search for Conceptual Clarity’ (2011) 48 Common
Market Law Review 1503.
110
152
THE BRITISH EQUALITY FRAMEWORK
successful.119 These quotas have mainly been imposed in the public sector, however,
and there appears to be a lack of political will to extend them to the private sector.120
Quotas are, evidently, controversial positive discrimination measures. 121 The US
abolished the use of affirmative action in government contracts, as it was deemed to
have led to quotas, and yet EU law allows them, and several member states have
adopted this positive discrimination approach. A quota system in Britain was
abolished in 1996.122 This illustrates Britain’s resistance to mandatory proactive
measures. The European Commission recently approved, however, a proposal for a
mandatory quota, which aims to allow for forty per cent of non-executive directors on
the boards of listed companies to be women.123 If the European Council of Ministers
approves the plans, Britain may have no choice but to implement quotas. 124 What can
be learned from the experiences in the US and India, is that if the EU does impose
mandatory quotas on Britain, the quotas must be effectively regulated, monitored, and
enforced, in order to achieve the desired results, and that the principle of merit should
still be adhered to in the recruitment/selection decision-making process, in order to
avoid detrimental effects on non-disadvantaged groups.
Positive discrimination proactive measures, such as quotas, are much more successful
in breaking down systemic inequalities, and increasing representation of
disadvantaged groups in a workforce, than the complaints-led system. This is
evidenced by the lack of success in Britain of increasing representation of
disadvantaged groups (the statistics have not changed in the last few decades)
compared to the significantly increased employment experienced by disadvantaged
groups in the US and India. However, positive discrimination is very controversial.
Positive action measures are less controversial. These have been adopted in a number
of jurisdictions.
3.3
Statutory Duties in Canada and South Africa
Canada and South Africa have adopted proactive measures in the form of statutory
duties. These duties are ‘mandatory’, as they are codified in legislation. However,
they are not ‘mandatory’ in the positive discrimination sense. The statutory duties in
these jurisdictions are compulsory. However, they do not go as far as setting targets as
to the percentage of candidates to be recruited from under-represented groups. They
are regarded as positive action provisions.
In Canada, women, people with disabilities aboriginal people, and other minorities,
are thought to be disadvantaged. They are under-represented within the workforce,
119
Idris (n 16); Caruso (n 117).
Stock (n 115).
121
ibid.
122
Godwin (n 76).
123
Lucy Money, ‘One, two, three, four...’ (2012/2013) Employers Law 12.
124
ibid.
120
NORTH EAST LAW REVIEW
153
and often receive lower rates of pay. 125 Canadian equality legislation was previously
complaints-led. This system was found to be limited so a proactive approach,
including voluntary positive action measures, was adopted instead. 126 The Abella
Commission Report, Equality in Employment, found however, that these voluntary
measures, on the part of employers, were ineffective in reducing the inequalities faced
by the disadvantaged groups. 127 Canadian law now includes mandatory positive action
provisions.128
The Employment Equity Act 1995 places obligations on employers to remedy underrepresentation of disadvantaged groups within their workforces.129 Under the Act,
employers with more than 100 employees are required to review their workforces to
determine the degree of representation of disadvantaged groups, and also to review all
employment policies and procedures.130 They must draw up an employment equity
plan, specifying goals and timetables for implementation,131 and file annual reports
with the appropriate government body. 132 The Canadian Human Rights Commission
(CHRC) receives copies of all reports, and it is authorised to conduct audits of each
employer.133 In cases of non-compliance, the Commission can request a written
undertaking from the employer, and if that fails, the Commission can issue
directions.134 If an employer ignores the Commission’s directions, the case can be
referred to the Employment Equity Review Tribunal.135 Fines of up to $50,000 can be
imposed on employers.136
Statistics show that there has been an increase in women’s representation in recent
decades. In 2004, fifty eight per cent of women were in employment, an increase of
16 per cent since 1976.137 This undoubtedly signals progress in the right direction;
however, it is slow progress, and the other disadvantaged groups have not experienced
125
Penny Hartin and Phillip C. Wright, 'Equal Opportunities International Canadian Perspectives on
Employment Equity' (1994) 13 Equal Opportunities International 12.
126
Mary Cornish, 'Employment and Pay Equity in Canada--Success Brings Both Attacks and New
Initiatives' (1996) 22 Can-USLJ 265.
127
Hartin and Wright (n 125).
128
Cornish (n 126).
129
Nicole Busby, ‘Affirmative Action in Women’s Employment: Lessons from Canada’ (2006) 33
Journal of Law and Society, 42.
130
Employment Equity Act 1995, s 9.
131
ibid s 10.
132
ibid s 18; Nicole Busby (n 129).
133
Employment Equity Act 1995 (n 130) s 23.
134
ibid s 25.
135
ibid s 28; Busby (n 129).
136
Employment Equity Act 1995 (n 130) s 36; Harish C. Jain, Frank Horwitz, Christa L. Wilkin,
'Employment equity in Canada and South Africa: a comparative review' (2012) 23 The International
Journal of Human Resource Management 1.
137
Stephanie Bernstein, Marie-Josée Dupuis, Guylaine Vallée, 'Beyond Formal Equality: Closing the
Gender Gap in a Changing Labour Market–A Study of Legislative Solutions Adopted in Canada'
(2009) 15 The Journal of Legislative Studies 481.
154
THE BRITISH EQUALITY FRAMEWORK
the same increases in representation.138 A number of problems can be identified with
the Canadian legislation, which might explain why the progress has been slow.
Canadian law has two streams: federal law and provincial law. The 1995 Employment
Equity Act only applies to employers whose activities fall under federal
jurisdiction.139 This poses a problem, as eighty eight per cent of Canada’s workforce
falls under provincial jurisdiction, and most of Canada’s provinces do not have
alternative employment equity legislation in place. 140 Where provinces do have such
legislation in place, it can be limited in scope; such as in Quebec, where the
legislation only covers public bodies.141 If the 1995 Act applied to all employers,
there may have been more success.
Another problem with Canadian employment equity relates to enforcement. The
legislation does not provide the CHRC with a clearly defined role, and as the
standards used by the Commission are not specifically outlined within the legislation,
employers can easily challenge the Commission’s directions and referrals to the
Employment Equity Review Tribunal.142 There is also a problem with the
Commission’s resources. They are unable to carry out effective monitoring and
auditing of all employers covered by the legislation, due to a lack of investment in the
resources they require.143 The CHRC needs a clearly defined role as well as adequate
resources to be able to enforce employment equity legislation. 144
South African employment equality law is largely modelled on Canadian law. The
features of the South African Employment Equity Act 55 of 1998 are very similar to
Canada’s 1995 Act.145 The South African Act includes mandatory positive action
measures which aim to redress disadvantages in employment resulting from past
discrimination during a period of apartheid, which involved widespread segregation
and inequality for certain groups. 146 The Act defines the disadvantaged groups as
being black people, women and people with disabilities,147 and it aims to ensure that
suitably qualified people from these groups are equally represented in the South
African workforce.148 The Act covers both public and private sector employers. 149
The Act does not appear to provide a threshold regarding the number of employees an
138
Harish C. Jain, Frank Horwitz and Christa L. Wilkin, ‘Employment Equity in Canada and South
Africa: A Comparative Review’ (2012) 23(1) The International Journal of Human Resource
Management 1.
139
Bernstein et al. (n 137).
140
Busby (n 129).
141
Bernstein et al. (n 137).
142
Busby (n 129).
143
ibid; Jain et al. (n 138).
144
Busby (n 129).
145
Jain et al. (n 138).
146
Saras Jadwanth, ‘Affirmative action in a transformative context: the South African experience’
(2003) 36 Conn L Rev 725..
147
Employment Equity Act 55 of 1998, s 1.
148
ibid s 15; Jadwanth (n 146).
149
Jadwanth (n 146).
NORTH EAST LAW REVIEW
155
organisation must have; however, it does say that employers that run ‘small
businesses’ will not be obligated to adopt positive action measures under the Act. 150
Under the South African Act, employers are required to conduct analyses regarding
the representation in their workforces,151 prepare an employment equity plan,152 and
submit annual reports to the Commission of Employment Equity, and the Department
of Labour.153 When employers fail to comply with the positive action requirements,
labour inspectors can request written undertakings154 and issue compliance orders155
which the Department of Labour can enforce through the courts, resulting in fines 156
for infringing employers. 157 It is difficult to determine from the literature whether the
legislation has resulted in an overall increase in the representation of disadvantaged
groups; however, progress towards equality is thought to be slow.158 Black people and
women are still largely recruited at lower levels, whereas white able-bodied males are
mainly recruited into top and middle-management.159 Following the apartheid, it is
likely that the disadvantaged groups will not have the skills necessary to perform
higher level jobs. South African employers could remedy this by taking specific
positive action to give members of disadvantaged groups the capabilities they need,
for example, by providing training opportunities.
It is noted that the damage done by apartheid will take some time to redress. 160
However, a number of issues in the employment equity legislation can be identified
which will hinder its success. Firstly, the South African Act is ambiguous in parts
(such as defining employers as those which do not run ‘small businesses’), and it fails
to provide employers with clear guidelines as to what they must do to comply with the
provision.161 There also appears to be a problem with enforcement. The roles of the
Employment Equity Commission and the Department of Labour are unclear, and
hence they fail to properly audit and monitor employers. 162 It appears, however, that
these monitoring bodies are allocated insufficient financial and human resources to
perform their roles effectively. 163 In addition, it is thought that the eventual sanction
of a fine being imposed by the courts is an ineffective means of enforcement, as many
businesses are in a position to pay such fines easily. 164
150
Grete S Bosch, ‘Restitution or discrimination? Lessons on Affirmative Action from South African
Employment Law’ (2007) 1 WEB Journal of Current Legal Issues.
151
Employment Equity Act 55 of 1998 (n 147) s 19.
152
ibid, s 20.
153
ibid, s 21; Bosch (n 150); Jadwanth (n 146).
154
Employment Equity Act 55 of 1998 (n 147), s 36.
155
ibid, s 37.
156
ibid. s 50.
157
Jain et al. (n 136); Saras Jadwanth (n 146).
158
Jain et al. (n 136).
159
ibid.
160
ibid.
161
Bosch (n 150).
162
Jain et al. (n 136).
163
Jadwanth (n 146).
164
Bosch (n 150).
156
THE BRITISH EQUALITY FRAMEWORK
Evidently, mandatory positive action measures have achieved some success in Canada
and South Africa (more success than the complaints-led model in Britain), but the
potential of the legislation in these jurisdictions is hindered by a number of problems,
including the scope of the legislation; vague provisions and unclear guidelines for
employers; undefined roles and lack of resources for the enforcement authorities, and
ineffective sanctions. Similar to Canada and South Africa, Northern Ireland has
adopted proactive measures in the form of statutory duties. The mandatory positive
action provisions in the Northern Irish legislation have, however, proved to be more
successful.
3.4
The Northern Irish Approach
In Northern Ireland, Catholics have been under-represented in the workforce
compared to Protestants for several decades, with the Catholic unemployment rate
being up to 2.6 times that of Protestants.165 It is thought that Catholics have been
excluded from work by discriminatory practices rooted in religion-based
segregation.166 The Fair Employment (Northern Ireland) Act 1989 aimed to achieve
fair participation in employment by remedying this under-representation, and
promoting religious integration within workplaces via mandatory positive action
obligations placed on employers. 167 The previous 1976 legislation, which did not
require any significant positive action from employers (the measures were voluntary
in nature) had been unsuccessful.168 The Fair Employment and Treatment Order 1998
(FETO) consolidated and replaced the 1976 and 1989 Acts. The practices required of
employers in Northern Ireland are much the same as in Canada. Employers are
required to register with the enforcement agency; 169 review their workforce and
employment practices every three years; 170 create a plan to remedy any underrepresentation, including goals and timetables, and submit annual monitoring reports
to the Equality Commission for Northern Ireland (ECNI). 171 The ECNI also has
similar powers to the Commission in Canada. It can monitor employers, make
recommendations as to how positive action should be taken, investigate employers, 172
request written undertakings,173 serve notices containing directions on non-complaint
165
Christopher McCrudden, Robert Ford and Anthony Heath, ‘Legal Regulation of Affirmative Action
in Northern Ireland: An Empirical Assessment’ (2004) 24 Oxford Journal of Legal Studies 363.
166
Editorial Team European Roma Rights Center, ‘Equality Policies: Examples of Good Practice
Outside Central and South Eastern Europe’ (2007) European Roma Rights Center-Research Papers 59.
167
McCrudden et al. (n 165).
168
Muttarak et al. (n 92).
169
Fair Employment and Treatment (Northern Ireland) Order 1998, s 48.
170
ibid s 55.
171
ibid s 52; Christopher McCrudden, ‘Affirmative Action and Fair Participation: Interpreting the Fair
Employment Act 1989’ (1992) 21(3) Industrial Law Journal 170.
172
Fair Employment and Treatment (Northern Ireland) Order 1998 (n 169) s 11.
173
ibid s 12.
NORTH EAST LAW REVIEW
157
employers,174 and refer cases to the Fair Employment Tribunal,175 which can impose
fines on employers of up to £40,000.176
The mandatory positive action measures in Northern Ireland have been successful in
redressing under-representation of Catholics in the workforce.177 In 1990, Catholic
employees constituted 34.9 per cent of the monitored workforce, which was 5.1
percent less than the estimated 40 per cent who were available for work. 178 By 2010,
Catholics represented 45.9 per cent of the monitored workforce. This is a 37 per cent
increase since the monitoring began, and it is very close to the percentage of Catholics
that are available for work.179 The statutory positive action duties in Northern Ireland
have been more successful than those in Canada and South Africa. A number of
reasons may explain this.
Firstly, the Fair Employment and Treatment Order 1998 applies to all public and
private sector employers with more than ten employees. 180 The scope is much wider
than in Canada, for example, where employment equity legislation only applies to
employers under federal jurisdiction, and public sector employers in some of the
provinces. The amount of employees an organisation must have is also much lower in
Northern Ireland than in Canada, thus further extending the scope of the Northern
Irish legislation. Secondly, in Northern Ireland, the legislation is clear, and guidelines
regarding the positive action provisions are published and distributed to employers by
the Commission.181 This contrasts with South Africa, for example, where the
legislation is ambiguous in parts, and no guidelines are issued to employers.
A third difference between Northern Ireland and Canada/South Africa is that in
addition to its monitoring and investigatory powers, the Commission in Northern
Ireland is able to reach positive action agreements with employers, which include
‘review of progress’ clauses, so that Commission officers can liaise with employers to
ensure that agreed positive action measures are in place, and that progress is being
made towards fair participation in their workforces.182 The Commission uses the
results of an employer’s triennial reviews to decide whether to work towards an
174
ibid s 14.
ibid s 16.
176
ibid s 17; McCrudden (n 171).
177
Editorial Team European Roma Rights Center (n 166); Muttarak et al. (n 92); McCrudden et al. (n
165).
178
Anon, ‘How vigilance keeps bias out of workplace: As the Equality Commission publishes its
annual report, Chief Commissioner Bob Collins argues that fair employment measures are still relevant
today’ Belfast Telegraph (Belfast, 7 December) 2010.
179
Russell R.T, ‘Fair Employment in Northern Ireland: the decades of change (1990 – 2010)’
(Northern Ireland Assembly, 2012)
<http://www.niassembly.gov.uk/Documents/RaISe/Publications/2012/general/12112.pdf> accessed 8
April 2013.
180
Fair Employment and Treatment (Northern Ireland) Order 1998 (n 169) s 48; Muttarak et al. (n 92).
181
Editorial Team European Roma Rights Center (n 166).
182
Evelyn Ellis, ‘The Fair Employment (Northern Ireland) legislation of 1989’ (1990) Summer, Public
Law 161; McCrudden et al. (n 165).
175
158
THE BRITISH EQUALITY FRAMEWORK
agreement with them.183 There are three kinds of agreements possible between the
Commission and employers: voluntary agreements, negotiated with Commission
officers; formal agreements, approved by the Commission’s Board, and legally
enforceable agreements, which are backed by sanctions, under Article 13 FETO. 184 In
practice, the majority of agreements have been voluntarily entered into by employers.
The Commission will generally only attempt a legally enforceable agreement when it
is unable to negotiate a satisfactory voluntary agreement with an employer. 185 It has
been suggested that the willingness of employers to enter into voluntary agreements
could be due to fear of the possible sanctions in legally enforceable agreements.186 It
was found that by the year 2000, Catholic representation in firms which had entered
into agreements was greater than in those that had not.187 Further research by Anthony
Heath et al. in 2009 confirmed the success of Commission agreements in achieving
fair employment.188 Positive action measures aimed at improving underrepresentation are more successful in firms which the Commission regularly liaises
with under an agreement than in firms which simply review their workforces, and
submit annual reports etc.189 The Northern Irish Commission appears to have much
more involvement in the positive action practices of employers than the Commissions
in Canada and South Africa, and this could explain the differences in success.
A fourth possible reason why Northern Ireland has been more successful in combating
under-representation is that in Northern Ireland, annual monitoring reports, which
identify employers by name, are published and made available to the general public.
These reports detail the number of Catholics and Protestants in the employer’s
workforce.190 This ‘naming and shaming’ strategy could also explain employers’
willingness to enter into voluntary agreements, so that they can (with the
Commission’s involvement) more effectively combat under-representation within
their workforces.191 This policy does not exist in Canada or South Africa, which
again could explain the difference in levels of success. John Braithwaite has argued
that in some cases, the power of persuasion can be an effective tool with which to
achieve compliance to regulation.192 The naming and shaming device in Northern
Ireland could be regarded as the Commission ‘persuading’ employers to comply. By
publishing annual monitoring reports, the Commission is appealing to the good will,
or better nature of those employers who are failing to take the necessary positive
action, to increase representation of Catholics within their workforces. The
183
Muttarak et al. (n 92).
ibid.
185
ibid.
186
Fredman (n 54).
187
McCrudden et al. (n 165).
188
Hepple (n 34) 153.
189
Muttarak et al. (n 92).
190
ibid.
191
ibid.
192
John Braithwaite, To punish or persuade: The enforcement of coal mine safety (SUNY Press 1985)
94-118.
184
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Commission is giving offending employers a warning, and a second chance to
comply, before it progresses to the disciplinary stage. 193 It has been noted that in
South Africa, the punishment of employers with fines is regarded as an ineffective
tool with which to achieve compliance, as employers can often easily pay the fines. It
is suggested that the power of persuasion, used by the Northern Irish Commission in
their naming and shaming policy, is a more effective means to achieving compliance
from employers than relying on an employer’s fear of potential punishment. Sanctions
should still be available as a backup, but persuasion should be attempted first.194
A final factor which may explain why the Northern Irish positive action measures
have been more successful than those in Canada and South Africa, relates to
Commission resources. It is not possible to determine each of the Commission’s
budgets from the literature. However, considering the fact that the Northern Irish
Commission carries out functions over and above those of the Canadian and South
African Commissions, such as publishing and distributing guidelines to employers,
drawing up and maintaining agreements with employers, and publishing annual
monitoring reports, suggests that the Northern Irish Commission has more resources
than the Canadian and South African Commissions; since the carrying out of such
tasks requires sufficient financial and human resources. The Commissions in Canada
and South Africa seemingly do not have adequate resources to conduct even their
basic functions of monitoring and auditing etc., so it is unlikely that they would be
able to carry out these additional, seemingly beneficial functions performed by the
Northern Irish Commission. The lack of resources allocated to the Canadian and
South African Commissions prevents them from successfully enforcing their positive
action legislation, in contrast to the Northern Irish Commission, which has been more
successful.
The success in Northern Ireland shows that proactive positive action measures can be
extremely effective in breaking down systemic equality issues within a workforce,
much more effective than the complaints-led system in Britain. Over two decades in
Northern Ireland, Catholics have become equally represented in the workforce. In
Britain, there has been no change in the representation of disadvantaged groups over
the last three decades. It is recognised that Northern Ireland has a different kind of
discrimination problem to Britain (religion-based segregation). However, there is no
reason why the Northern Irish substantive approach to equality could not be adopted
in Britain. Britain already has the necessary organisations in place (the EHRC and the
Tribunal Service), and there is nothing about the Northern Irish institutional
arrangements which are unique to Northern Ireland. There have been small steps in
Britain over the years to move towards a substantive approach. However, as will be
discussed in the next section, these have been unsuccessful.
193
194
ibid.
ibid.
160
4
THE BRITISH EQUALITY FRAMEWORK
POSITIVE ACTION IN BRITAIN
4.1
Pre-Equality Act Positive Action
As already discussed, British legislation has traditionally adopted a formal approach
to equality, and the system for dealing with discrimination has always been a reactive,
complaints-led system. However, a look back over the history of British equality
legislation shows that there have been positive action provisions in existence for many
years. These could be regarded as small steps towards substantive equality, but in
practice, they have proved to be unsuccessful. The Sex Discrimination Act 1975
(SDA)195 and the Race Relations Act 1976 (RRA) 196 allowed employers (both in
encouraging individuals to take advantage of opportunities, and also in the provision
of training) to favour a person on the basis of his/her sex or race, where underrepresentation of that particular sex or race could be identified in their workforce in
the past twelve months.197 These provisions gave employers the power to take
positive action, although there was no obligation to use that power. It would be used
entirely voluntarily (unlike in Northern Ireland, where the positive action provisions
impose mandatory duties on employers). The Cambridge Review found that the
positive action provisions in the SDA and RRA were ineffective and little used. 198
Employment Equality Regulations199 from EU law widened the scope of positive
action in Britain. They provided similar positive action provisions to the SDA and
RRA for a number of other protected characteristics. These regulations were less
restrictive than the provisions in the SDA and RRA, as they did not include a
requirement of under-representation in the past twelve months. There was still no
obligation for employers to use them, however, and they still only applied to training
and the encouragement of individuals to take up opportunities. 200 The British
legislature (until recently) failed to take advantage of EU law, which permitted
member states to introduce positive action provisions, which would allow employers
to favour a person from a disadvantaged group, in decisions about appointments and
promotions.201 Although again, such provisions would still not necessarily have
imposed an obligation on employers to use positive action (such as in Northern
Ireland); they would have merely provided a power, not an obligation.
There was also a distinct lack of clarity in the law’s positive action provisions.
Employers who wanted to use the positive action provisions were confused by what
195
Sex Discrimination Act 1975, ss 47-48.
Race Relations Act 1976, ss 37-38.
197
James Hand, Bernard Davis, Pat Feast, ‘Unification, simplification, amplification? An analysis of
aspects of the British Equality Act 2010’ (2012) 38 Commonwealth Law Bulletin 509.
198
Hepple (n 34) 128.
199
Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660, Employment Equality
(Sexual Orientation) Regulations 2003, SI 2003/1661, Employment Equality (Age) Regulations 2006
implementing Council Directive 2000/78/EC, SI 2006/1031.
200
James Hand, ‘A decade of change in British discrimination law: positive steps forward?’ (2008) 34
Commonwealth Law Bulletin 595.
201
Hand et al. (n 197) 525; Case C-409/95 (n114); Case C-158/97 (n 116).
196
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161
was legally permissible, and what was not.202 In 2006, the Avon and Somerset
Constabulary introduced a positive action campaign, to recruit officers which
reflected the diversity in the communities they served. They were advised that the
campaign may have breached the SDA and RRA. They had attempted to be proactive
in achieving equality, but in turn, may have been guilty of discrimination. 203 In 2007,
the Equalities Review reported that employers were frustrated with equality
legislation, as some of them actually wanted to be proactive towards achieving an
equal workforce, but the constraints within the existing positive action provisions
made this difficult.204 The lack of clarity and the constraints within the positive action
provisions made them ineffective, and subsequently they were little used by
employers.
4.2
Recommendation for mandatory employer duties
In the Cambridge Review, Hepple had recommended the adoption of statutory duties
similar to those in Northern Ireland, Canada and South Africa. He recognised that
Britain had continuing problems of under-representation of disadvantaged groups, and
unequal pay for women.205 He reported that the ‘voluntary’ approach to positive
action, along with the complaints-led formal equality model, was ineffective at
breaking down systemic inequalities within the British workforce.206 He proposed a
system of mandatory employer duties under the substantive equality approach.
Employers with more than ten employees in both the public and private sectors would
be required to conduct reviews once every three years, to identify any issues of underrepresentation, or unequal pay within their workforces. Similarly to the Northern
Irish, Canadian and South African approaches, employers would be required to draw
up employment equity, or pay equity plans (or both if necessary) to address any issues
found, and those who were non-compliant would be subject to Commission notices,
and possible sanctions at an employment tribunal.207
As mentioned above, the recommendations from the Cambridge Review made their
way into a Private Member’s Bill, and eventually became part of the Equality Bill in
2009. The Bill was heavily scrutinised by the House of Commons over one year, but
was then rushed through the House of Lords with little debate. Lord Lester was keen
to ensure that the Bill was passed before the looming general election. 208
Subsequently, however, many clauses fell without scrutiny from the House of Lords.
The clause relating to mandatory reviews was one of them.209 The main objection to
202
Lizzie (n 41).
ibid.
204
ibid.
205
Hepple et al. (n 8).
206
ibid.
207
ibid.
208
Hepple (n 33) 14.
209
Hand et al. (n 197).
203
162
THE BRITISH EQUALITY FRAMEWORK
mandatory reviews was that they would be costly and time-consuming, and in a time
of recession, this would be very burdensome on businesses.210
There is never a good time to impose new requirements on businesses. There will
always be some objection or another, and requirements will always seem burdensome
when they are first introduced. Achieving equality should not be seen however, as an
inconvenience that can be delayed until a more suitable time. Asking employers to
conduct reviews of their workforce once every three years, and if necessary, to take
steps to remedy any issues of systemic discrimination, can hardly be regarded as
overly costly or time-consuming. It is also questionable as to why a requirement
regarding equality should be regarded as any more burdensome on businesses than
other requirements, such as completing tax returns, or abiding by health and safety
regulations. The reviews involved in health and safety regulations have been
described as ‘box-ticking’ exercises of no real value.211 However, it has been proven
that where these reviews are well designed, they can achieve valuable, positive
outcomes, such as fewer accidents, less threat of legal action, lower employee absence
and turnover rates, and reduced costs.212 Equality reviews may also initially be
regarded as burdensome exercises. However, as has been seen in Northern Ireland,
mandatory positive action reviews have helped to achieve successful results of equal
employment of the previously under-represented Catholics. In addition to achieving
the goal of equality in workforces, a number of other benefits can be experienced by
employers. Taking positive action can result in a more diverse workforce, with a
wider range of skills and experience, which can respond well to changes, better
understand the needs of a wider range of customers/clients, provide a better quality of
service, and which is more productive.213 There are great benefits to mandatory
positive action measures which outweigh any burden on businesses.
4.3
Positive Action in the Equality Act 2010
Although the Government refused to allow mandatory reviews to be part of the
Equality Act 2010, Part 11 of the Act (‘advancement of equality’) does include
several positive action provisions. Section 158 relates to positive action in general, as
it is applicable to all people, not just employers. It brings together, and extends, the
positive action provisions provided by the old framework of legislation, and it is
applicable to all nine protected characteristics.214 In the employment context however,
210
HC Deb 11 May 2009, col 568.
Nikki Bell, Nick Vaughan, Jane Hopkinson, ‘Factors Influencing the Implementation of RPE
Programmes in the Workplace’ (Health and Safety Laboratory, 2010)
<http://www.hse.gov.uk/research/rrpdf/rr798.pdf> accessed 17 April 2013.
212
Health and Safety Executive, ‘Benefits and costs’ <http://www.hse.gov.uk/leadership/benefits.htm>
accessed 11 April 2013.
213
Equality and Human Rights Commission, ‘Equality Act 2010 Code of Practice: Employment
Statutory Code of Practice’ 2011)
<http://www.equalityhumanrights.com/uploaded_files/EqualityAct/employercode.pdf> accessed 19
April 2013; McHarg and Nicolson (n 47).
214
Hand et al. (n 197) 524.
211
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under section 158, if an employer reasonably believes that people who share a
protected characteristic (such as race, sex or disability) suffer a disadvantage in
relation to that characteristic, or that they have a different set of needs to others, or
where there is under-representation of people with a particular characteristic in a
certain activity, they are permitted to take action to deal with any of these issues,
provided that it is proportionate as a means of remedying these issues. 215 The Act’s
explanatory notes advise that for positive action to be proportionate, it must be
appropriate to remedying the particular issue. Employers must consider such things as
‘the seriousness of the relevant disadvantage; the extremity of need or underrepresentation, and the availability of other means of countering them’. 216 Section 158
could be used by an employer to, for example, offer training, mentoring or bursaries
to under-represented groups, or to increase a woman’s wage to remedy a gender pay
gap without being accused of unfair treatment, or discrimination.217 This is a useful
provision as it remedies the issues experienced by the Avon and Somerset
Constabulary by allowing those employers who want to be proactive in achieving
equality to do so without being accused of discrimination. The provision provides
greater clarity, removes the constraints of the previous provisions (there is now no
requirement for under-representation to have been identified in the last 12 months),
and widens the scope of positive action to nine protected characteristics.
Section 159 of the 2010 Equality Act is a brand new concept which finally takes
advantage of the discretion in EU law allowing positive action measures in
recruitment and promotion.218 Under section 159, when an employer is involved in the
recruitment or promotion of employees, they are permitted to favour a candidate with
a protected characteristic over another candidate without that characteristic, if they
reasonably believe that people who share that characteristic, either suffer a
disadvantage in relation to that characteristic, or are under-represented within their
workforce.219 This provision is conditional however, in that the candidate with the
protected characteristic must be equally qualified compared with the other candidate;
the employer should not have a general policy of treating people with protected
characteristics more favourably, and the action taken must be a proportionate means
of remedying the disadvantage suffered, or the under-representation in the
workforce.220 This provision provides employers with an extra mechanism with which
to achieve equality in their workforces.
Sections 158 and 159 have the potential to be valuable instruments with which to
break down systemic inequalities within the British workforce; increasing the
representation of disadvantaged groups and remedying the gender pay gap. The
215
Equality Act 2010, s 158; Hand et al. (n 197) 524.
Equality Act 2010 (n 215) c.15 – Explanatory Notes, para 512.
217
Jackie Cuneen, ‘Positively Negative?’ (2011) March Employers Law 14-15.
218
Hand et al. (n 197) 525.
219
Equality Act 2010 (n 215) s 159; Jackie Cuneen (n 217).
220
ibid.
216
164
THE BRITISH EQUALITY FRAMEWORK
problem is that there are no mandatory requirements for employers to use them. The
use of the provisions is entirely voluntary, just like in the old framework of British
equality laws. Voluntary positive action provisions in both Canada and Northern
Ireland proved to be unsuccessful, and sections 158 and 159 will (on their own) be
unsuccessful too. The new framework under the Equality Act lacks all of the elements
that have made the Northern Irish approach successful. British employers are not
required to review their workforces or employment practices; they are not required to
create positive action plans, and they are not required to submit annual reports to the
EHRC. Unlike the Northern Irish Commission, the EHRC does not have the power to
monitor employers regarding positive action; it cannot request undertakings from, or
serve notices on, employers who fail to take positive action towards achieving
equality; is unable to reach positive action agreements with employers, and is not
permitted to ‘name and shame’ offending employers. Employment tribunals in Britain
also do not have the powers of the Northern Irish tribunals to impose fines on
employers who do not, where necessary, take positive action. Sections 158 and 159
will be unsuccessful without mandatory employer duties to use them, and
enforcement from the EHRC and the Tribunal Service.
The only proactive measure in the Equality Act 2010 that could possibly be regarded
as ‘mandatory’ is the public sector equality duty under section 149. 'Duty' suggests
that it is a mandatory requirement; however, its likely effectiveness is questionable.
Under section 149, when exercising its functions (including its role as an employer), a
public authority must ‘have “due regard” to the need to eliminate discrimination’, and
also ‘advance equality of opportunity’ and ‘foster good relations’ between people who
share a protected characteristic, and people who do not.221 The duty covers public
bodies and private bodies exercising public functions (‘public functions’ being those
as described in the Human Rights Act 1998). Private bodies exercising purely private
functions are not subject to the duty. The experiences in Canada and Northern Ireland,
when compared, highlight that employment equality legislation needs to apply to
employers across both the public and the private sector in order to be successful. In
Canada, the legislation does not cover a large percentage of the workforce, and this
hinders its success. In Britain, over 80 per cent of the workforce is employed in the
private sector, so it is unlikely that a ‘public sector’ equality duty will be sufficient to
achieve the equality goal.222 The duty would need to apply to both public and private
sector employers, like the duties in Northern Ireland.
However, it is not only the scope of the duty which is an issue. Its strength is also a
concern, as it does not appear to impose any ‘mandatory’ requirements on public
authorities. Under the duty, the public authority need only have ‘due regard’ to the
need to combat discrimination. The wording suggests that it would be sufficient for
221
222
Equality Act 2010 (n 215) s 149.
Hepple (n 33) 22.
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the authority to give consideration to the need to take action, but then do nothing. The
requirement to have ‘due regard’ gives the authority wide discretion to decide (once it
has considered the equality impact) whether to take action at all. 223 Again, as has been
seen in Northern Ireland and Canada, duties must be strictly ‘mandatory’ in order to
achieve results.
4.4
British Employers – Reactions to Positive Action
The Equality Act 2010 has, as has been discussed, provided positive action provisions
which employers have the option of using when making decisions regarding equality.
There are likely to be varying reactions from employers. Some will welcome the
provisions, and others will not.224 It is up to them whether they choose to use them.
Some employers will view the provisions as providing clarity to a complex area of the
law, and also as a mechanism which allows them to be flexible in their actions. 225 The
positive action provisions will assist employers who are really committed to achieving
equality, as it will be easier for them to use positive measures without being accused
of discrimination.226
Other employers will likely object to the positive action provisions because they want
to protect the principle of merit. Such employers say that the principle of merit must
be preserved, in order to motivate employees and keep productivity high. 227 They also
argue that candidates want to be given a job, or a promotion, on their merits, rather
than being labelled as someone who was selected because they belong to a
disadvantaged group. 228 There is, however, no quantifiable evidence to suggest that
disadvantaged groups would object to positive action.229 It is also argued by Noon that
even if positive action does make disadvantaged groups feel stigmatised for a period,
this is a better alternative to the continuing disadvantage that they will suffer if
proactive measures are not taken to tackle under-representation.230
Another concern relates to the effect of positive action on non-disadvantaged groups
where the merit principle is disregarded. 231 It is understandable why employers have
this concern, given the experience in the US, where merit was disregarded and nondisadvantaged groups suffered detrimental effects. In Northern Ireland, however,
employers are required to have regard to the principle of merit under the positive
223
Fredman and Spencer (n 26) 600; Hepple (n 33) 19.
Cuneen (n 217).
225
Burrows (n 17) 6.
226
Dianah Worman, Tom Hadley, Jackie Cuneen, ‘Have Your Say... Positive Action Provision’ (2011)
Feb Employers Law 11.
227
Kate Hilpern, ‘A Question of Positive Motives’ (2007) Oct Employers Law 12-13.
228
Daniel Thomas, ‘First Among Equals?’ (2010) June Employers Law 12-13; Worman et al. (n 226).
229
Noon (n 78).
230
ibid.
231
Hilpern (n 227).
224
166
THE BRITISH EQUALITY FRAMEWORK
action scheme,232 and in Northern Ireland, equality in the workforce has been
achieved without such detrimental effects.233 Section 159 Equality Act 2010 requires
that candidates be equally qualified before any consideration can be made of protected
characteristics, so there is no reason for British employers to object to positive action
based on this concern.
Another objection from employers regarding the positive action provisions, and their
reluctance to use them is likely to stem from a fear of discrimination claims from
unsuccessful candidates.234 It is noted that affirmative action in the US brought about
much litigation from aggrieved members of non-disadvantaged groups.235 The
affirmative action programme was, however, the result of an Executive Order rather
than a statutory provision (like sections 158 and 159 Equality Act). Executive Orders
in the US are generally documents from the President to executive branch officials,
instructing them on how to carry out their duties. They are not ratified by Congress;
they can be challenged by the public, and they can be (and have been) struck down by
the courts.236 In comparison, sections 158 and 159 are cemented in statute; they have
been consented to by Parliament, and they are much less vulnerable to challenge.
Although sections 158 and 159 do not expressly state that those who use them will be
immune from litigation, they do imply that, provided an employer can demonstrate
that they have complied with the requirements set out in the provisions, they will be
safe from potential discrimination claims from aggrieved candidates. 237 The US
affirmative action Executive Order contained no implicit immunity from suit. It
should also be noted that as the US approach disregarded the principle of merit, there
would have been more reason for unsuccessful candidates to complain than there will
be under the Equality Act, where an unsuccessful candidate will only lose out to an
equally qualified person.
Another concern about the positive action provisions from employers is that positive
action, either is, or will lead to ‘positive discrimination’. The Government has tried to
reassure employers that the positive action provisions are not the same as positive
discrimination.238 Section 159 also clearly makes positive discrimination unlawful, by
stating that employers must not have a policy of automatically treating people with
protected characteristics more favourably than others. There are a number of reasons
why employers will object to positive action; however, as has been demonstrated,
232
Equality Commission for Northern Ireland, ‘Fair Employment in Northern Ireland: Code of
Practice’ <http://www.equalityni.org/archive/pdf/[email protected]> accessed 29 April
2013.
233
McCrudden et al. (n 165).
234
Ed, ‘Equality Bill’ (2009) 16(3) Health & Safety at Work 8; Worman et al. (n 226).
235
Douglas-Scott (n 96).
236
Todd F. Gaziano, ‘The Use and Abuse of Executive Orders and other Presidential Directives’ (The
Heritage Foundation, 2001) <http://www.heritage.org/research/reports/2001/02/the-use-and-abuse-ofexecutive-orders-and-other-presidential-directives> accessed 14 April 2013.
237
Money (n 123).
238
Cuneen (n 217).
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these can be overcome, and they are no justification for failing to take positive action.
As has been discussed, positive action under the substantive equality approach is
needed to address systemic issues of inequality within the British workforce.
Maintaining the current individual complaints-led model will not address these issues.
5
THE WAY FORWARD FOR BRITISH EQUALITY LAW
It is acknowledged that the complaints model should undoubtedly still play a part
within the British system, as individuals still need a process by which to complain
about discrimination they may experience. It has been demonstrated, however, that
the current model of anti-discrimination in Britain, which is ‘led’ by complaints under
the formal equality approach, is incapable of redressing past discrimination suffered
by disadvantaged groups. It is only geared to compensate individual victims of
discrimination, and, as has been seen, this happens only rarely. Under the current
system there has been little progress towards achieving equality over the past few
decades. The complaints-led system fails to address deep-rooted systemic issues of
inequality within the British workforce, and it is only by addressing these issues that
equality will be achieved.
The substantive equality approach is capable of breaking down these systemic issues,
and it can ‘lead’ the way to equality. This has been proven by the experience in
Northern Ireland, where a proactive approach towards fair employment has resulted in
equal representation of a previously under-represented group. The positive action
provisions provided by the Equality Act 2010 are an improvement upon the positive
measures provided under the old framework of equality legislation, and they have the
potential to be valuable instruments with which to break down systemic equality
issues within the British workforce. However, as there is no statutory duty for
employers to use them, they will be unsuccessful in achieving the equality goal.
Commentators on equality criticise the British framework, but they fail to suggest an
alternative. It is suggested here that the British Government should learn from the
experiences in Canada and Northern Ireland, and bypass the voluntary positive action
stage. It should commit to the substantive equality approach, and incorporate
mandatory positive action provisions into the Equality Act 2010. As the Northern
Irish statutory duties have achieved successful results, the British legislature should
model the mandatory provisions on the Northern Irish legislation. Part 11, chapter 1
of the 2010 Act, which includes section 149 (‘public sector equality duty’) should be
replaced by a framework of provisions like those in Northern Ireland, imposing
mandatory duties on employers with more than ten employees in both the public and
private sectors. Sections 158 and 159 should be maintained, and employers should use
these provisions to help them achieve the objectives in their positive action plans. The
EHRC should be provided with the same powers given to the Northern Irish
Commission regarding monitoring, requesting undertakings, and serving notices on
employers. The EHRC should also be able to ‘persuade’ employers to comply, like
the Northern Irish Commission, by ‘naming and shaming’ those who fail to take
necessary positive action. The EHRC should also have the ability of the Northern
168
THE BRITISH EQUALITY FRAMEWORK
Irish Commission, to enter into agreements with employers. The Employment
Tribunal Service in Britain should continue in its role as an adjudicator for individual
discrimination complaints. However, it should also have the power, like the Northern
Irish Tribunal Service, to impose fines on employers for failing to comply with
positive action duties should the EHRC’s persuasion tactics fail.
It is acknowledged that some employers may be reluctant at first, and may have
concerns about mandatory positive action provisions. The success in Northern Ireland
should be used to highlight the benefits of positive action, and to encourage
employers to get on board. The process might seem burdensome to businesses
initially, but any new requirement will seem this way at first. It is evident, however, in
Northern Ireland that businesses increasingly enter into voluntary agreements with the
Commission, so perhaps businesses in Britain will not be as resistant as has been
thought.
The reality of the situation is, however, that until the British Government gets behind
the goal of equality, and shows real commitment towards achieving it, there will be no
redress of past discrimination experienced by disadvantaged groups, and no changes
in the statistics. On the one hand, the Government looks to be supportive of the
equality goal by enacting the Equality Act 2010, and providing positive action
provisions for employers to use. On the other hand, however, it continues to reduce
the EHRC’s budget, take away its powers, and refuses to impose obligations on
employers to act. Equality within the British workforce will only be achieved once the
Government gives serious consideration to the currently flawed equality framework
and institutional arrangements.